


A Mini History Lesson (2)

by pallasite



Series: Behind the Gloves [20]
Category: Babylon 5, Babylon 5 & Related Fandoms
Genre: Backstory, Canon Compliant, Constitutional law, Fix-It, Gen, Historical, Law, People are not devices, Psi Corps, Telepath Law (Babylon 5), The Corps Was Right, The Psi Corps tag is mine, Worldbuilding, telepaths
Language: English
Status: Completed
Published: 2017-03-18
Updated: 2017-03-18
Packaged: 2018-10-06 14:25:49
Rating: General Audiences
Warnings: No Archive Warnings Apply
Chapters: 1
Words: 1,894
Publisher: archiveofourown.org
Story URL: https://archiveofourown.org/works/10336598
Author URL: https://archiveofourown.org/users/pallasite/pseuds/pallasite
Summary: A mini history lesson about the origins of American "privacy law" and the beginning of the legal story of how we got from "here" to "there."Oh Justice Brandeis, if you only knew how your fears were used to turn the Constitution on its head.





	

**Author's Note:**

> What is this series? Where are the acknowledgements, table of contents and universe timelines? See [here](http://archiveofourown.org/works/10184558/chapters/22620590).
> 
> From Gregory Keyes, Dark Genesis, p. 32-33 (Sen. Crawford talking with his ex-wife in 2115):
> 
> Lee: "Surely you see that [the hearings] are necessary, Dr. Kimbrell? It's unfortunate, but telepathy is too powerful a tool - and a weapon - not to be regulated. What do you think the killings are all about? People are afraid, afraid that the person next to them might be reading their minds."
> 
> Alice: "They're jealous."
> 
> Lee: "That, too. Human society is structured around secrets, around limited disclosure. Success has always meant being able to navigate in that world, guess the unspoken, erect a facade. And now we find that there are people who have the inborn ability to simply cut through all that. Would you like to play poker with a telepath? Or trade stocks against someone who could secure inside information simply by being in the room with the right person? It's not so much a matter of specifically regulating telepaths as it is of making certain that existing laws regarding privacy and disclosure aren't violated by them."
> 
> Alice: "And yet you are specifically regulating telepaths - telepaths can't be lawyers, or stockbrokers, or Olympic fencers-"
> 
> Lee: "Plenty of precedent for that. Specific exclusions were spelled out for the use of the [wire] tap, too, when it was invented."
> 
> Alice: "These are people, not listening devices."
> 
> Lee: "They are both, I'm afraid, which makes regulation all the more necessary. People won't stop killing telepaths - and people they suspect of being telepaths - until they stop feeling threatened by them. That won't happen without regulation."
> 
> Alice: "I know."
> 
> *****
> 
> BIG PICTURE: Once upon a time, in US law, "unreasonable search and seizure" only applied to physical tangible effects and people's physical bodies. Therefore, in this case, the Court ruled that the government wire-tapping suspected criminals wasn't unconstitutional. Justice Brandeis dissented and laid the basis for Court eventually to begin to interpret a "right to privacy" into the constitution. The intent was to protect the "little guys" from unreasonable government intrusion into their lives. Unfortunately, in the B5-'verse, the way Justice Brandeis worded his dissent, and the fears expressed therein, laid the basis for a whole new form of government abuse of power in the 22nd century, as the government expanded this "right to privacy" (of normals only) until it obliterated all constitutional rights to equal protection and due process that telepaths used to have, in the name of "protecting the privacy" of normals from "intrusion" of telepaths (by existing).
> 
> Justice Brandeis wanted to help the "little guy" _against_ big government, but his new "right to privacy" eventually became the chief legal principle underlying all new oppressive laws against the "little guy," as administered by the largest regulatory agency in _the entire Earth Alliance_.
> 
> Thus begins the story of how normals stripped telepaths of, as Garibaldi put it, "every right they had."

Excerpts from Key Cases in Telepath Law and Criminal Procedure

Dr. Augustus Harcrow

Psi Corps Major Academy, Geneva

Fall Semester 2201

_The following cases illustrate the evolution of Fourth and Fifth Amendment jurisprudence in the United States from the early 20 th to the early 22nd century, a history that heavily influenced the current legal system of the Earth Alliance. As you read the following seminal cases, consider the evolution of the Court’s interpretation of the Fourth and Fifth Amendments, especially the development of the “right to privacy” of normals, a subject which we shall return to in later units of this course._

_Olmstead v. United States, presented below, is seminal for being the first case in American jurisprudence to consider the implication of telepaths in the criminal justice system. Justice Brandeis’ famous dissent laid the foundation for much of telepath law today, including the rules that bind Psi Cops as we conduct criminal investigations._

_Be mindful as well, as you read, of how the EA legal system, through both statute and court decisions, “reclassified” telepaths. Prior to the passage of the Crawford-Tokash Act of 2115, telepaths and normals shared the same legal rights. There was no legal distinction between the two groups. The new law, however, began the reclassification process and dramatically changed our legal status. After Crawford-Tokash, telepaths were registered and regulated by the MRA, as overseen by the Senate Committee on Technology and Privacy and the Committee on Metasensory Regulation._

_Why the Committee on Technology and Privacy? Other than the fact that Sen. Crawford himself chaired this committee, what is the connection? Why did normals choose this route to "reclassify" telepaths and deprive them of legal rights?_

_As you read the case below, consider how the conception of telepathy as a form of “wire-tapping,” as early as 1928, informed those legal developments._  

***** 

[Olmstead v. United States, 277 U.S. 438 (1928)](https://supreme.justia.com/cases/federal/us/277/438/case.html)

CHIEF JUSTICE TAFT delivered the opinion of the Court.

These cases are here by certiorari from the Circuit Court of Appeals for the Ninth Circuit. … They were granted with the distinct limitation that the hearing should be confined to the single question whether the use of evidence of private telephone conversations between the defendants and others, intercepted by means of wiretapping amounted to a violation of the Fourth and Fifth Amendments.

The petitioners were convicted in the District Court for the Western District of Washington of a conspiracy to violate the National Prohibition Act by unlawfully possessing, transporting and importing intoxicating liquors and maintaining nuisances, and by selling intoxicating liquors. … The evidence in the records discloses a conspiracy of amazing magnitude to import, possess and sell liquor unlawfully. … In a bad month, sales amounted to $176,000; the aggregate for a year must have exceeded two millions of dollars.

…

The information which led to the discovery of the conspiracy and its nature and extent was largely obtained by intercepting messages on the telephones of the conspirators by four federal prohibition officers. Small wires were inserted along the ordinary telephone wires from the residences of four of the petitioners and those leading from the chief office. The insertions were made without trespass upon any property of the defendants. They were made in the basement of the large office building. The taps from house lines were made in the streets near the houses.

The gathering of evidence continued for many months. … It showed the dealing by Olmstead, the chief conspirator, with members of the Seattle police, the messages to them which secured the release of arrested members of the conspiracy, and also direct promises to officers of payments as soon as opportunity offered.

The Fourth Amendment provides --

"The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized."

And the Fifth: "No person . . . shall be compelled, in any criminal case, to be a witness against himself."

…

The well known historical purpose of the Fourth Amendment, directed against general warrants and writs of assistance, was to prevent the use of governmental force to search a man's house, his person, his papers and his effects, and to prevent their seizure against his will.

…

 _Gouled v. United States_ carried the inhibition against unreasonable searches and seizures to the extreme limit. Its authority is not to be enlarged by implication, and must be confined to the precise state of facts disclosed by the record. A representative of the Intelligence Department of the Army, having by stealth obtained admission to the defendant's office, seized and carried away certain private papers valuable for evidential purposes. This was held an unreasonable search and seizure within the Fourth Amendment. A stealthy entrance in such circumstances became the equivalent to an entry by force. There was actual entrance into the private quarters of defendant, and the taking away of something tangible. Here we have testimony only of voluntary conversations secretly overheard.

The Amendment itself shows that the search is to be of material things -- the person, the house, his papers, or his effects. The description of the warrant necessary to make the proceeding lawful is that it must specify the place to be searched and the person or _things_ to be seized.

…

By the invention of the telephone fifty years ago and its application for the purpose of extending communications, one can talk with another at a far distant place. The language of the Amendment cannot be extended and expanded to include telephone wires reaching to the whole world from the defendant's house or office. The intervening wires are not part of his house or office any more than are the highways along which they are stretched.

 This Court, in _Carroll v. United States_ , declared:

"The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted and in a manner which will conserve public interests as well as the interests and rights of individual citizens."

Justice Bradley, in the _Boyd_ case, and Justice Clark in the _Gouled_ case, said that the Fifth Amendment and the Fourth Amendment were to be liberally construed to effect the purpose of the framers of the Constitution in the interest of liberty. But that cannot justify enlargement of the language employed beyond the possible practical meaning of houses, persons, papers, and effects, or so to apply the words search and seizure as to forbid hearing or sight.

…

Neither the cases we have cited nor any of the many federal decisions brought to our attention hold the Fourth Amendment to have been violated as against a defendant unless there has been an official search and seizure of his person, or such a seizure of his papers or his tangible material effects, or an actual physical invasion of his house "or curtilage" for the purpose of making a seizure.

We think, therefore, that the wiretapping here disclosed did not amount to a search or seizure within the meaning of the Fourth Amendment.

…

The judgments of the Circuit Court of Appeals are affirmed.

Mr. Justice Brandeis, dissenting:

"We must never forget," said Mr. Chief Justice Marshall in _McCulloch v. Maryland_ , "that it is a constitution we are expounding." Since then, this Court has repeatedly sustained the exercise of power by Congress, under various clauses of that instrument, over objects of which the Fathers could not have dreamed. We have likewise held that general limitations on the powers of Government, like those embodied in the due process clauses of the Fifth and Fourteenth Amendments, do not forbid the United States or the States from meeting modern conditions by regulations which, "a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive." Clauses guaranteeing to the individual protection against specific abuses of power must have a similar capacity of adaptation to a changing world. It was with reference to such a clause that this Court said, in _Weems v. United States_ :

"Legislation, both statutory and constitutional, is enacted, it is true, from an experience of evils, but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore, a principle, to be vital, must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall 'designed to approach immortality as nearly as human institutions can approach it.' The future is their care, and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be. Under any other rule, a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value, and be converted by precedent into impotent and lifeless formulas. Rights declared in words might be lost in reality."

When the Fourth and Fifth Amendments were adopted, "the form that evil had theretofore taken" had been necessarily simple. Force and violence were then the only means known to man by which a Government could directly effect self-incrimination. It could compel the individual to testify -- a compulsion effected, if need be, by torture. It could secure possession of his papers and other articles incident to his private life -- a seizure effected, if need be, by breaking and entry. Protection against such invasion of "the sanctities of a man's home and the privacies of life" was provided in the Fourth and Fifth Amendments by specific language. But "time works changes, brings into existence new conditions and purposes." Subtler and more far-reaching means of invading privacy have become available to the Government. Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.

Moreover, "in the application of a constitution, our contemplation cannot be only of what has, been but of what may be." The progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping. Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. **Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions. "That places the liberty of every man in the hands of every petty officer" was said by James Otis of much lesser intrusions than these. To Lord Camden, a far slighter intrusion seemed "subversive of all the comforts of society." Can it be that the Constitution affords no protection against such invasions of individual security?** (emphasis added)

***** 

_Is wire-tapping an apt analogy for telepathy? Most telepaths would naturally say no. Given this, why might normals nonetheless hold to this view? What present-day laws are predicated on this misplaced belief?_

**Author's Note:**

> And how do you think this famous 1928 court case may have inspired certain works of 20th century science fiction, say, involving police and telepaths?


End file.
